Could Louisiana ruling impact Utah's same-sex marriage appeal?

SALT LAKE CITY — In upholding Louisiana's voter-approved marriage law, a federal judge embraced many of the same arguments Utah makes in defending Amendment 3.

But it is not clear how much U.S. District Judge Martin L.C. Feldman's ruling this week will affect Utah's appeal to the U.S. Supreme Court.

Feldman's opinion broke a string of 21 consecutive federal decisions that found same-sex marriage bans unconstitutional since the Supreme Court struck down part of the Defense of Marriage Act in U.S. v. Windsor last summer.

"The impact is minimal or nonexistent," said University of Utah law professor Cliff Rosky. He then added, "Having no one on your side and having one person on your side, I suppose they're different," Rosky said. "Of course, it depends on how many people are on the other side."

Bill Duncan, who heads the Provo-based Marriage Law Foundation, said the ruling opens the door for other federal judges to decide in favor of state laws defining marriage as the union of a man and a woman. It also signals to the Supreme Court a division among the states, giving the justices more reason to take up a same-sex marriage case.

"The key point is that the court accepted all of the kinds of arguments that Utah was making, and did it pretty emphatically," he said.

Duncan said there's still clearly an imbalance among the federal decisions and Feldman's ruling doesn't upend them.

"But it definitely gives pause and reason to think that this is still very much an open issue. The federal courts could decide it a variety of ways, and the Supreme Court could easily side with the Judge Feldman rather than the other judges that have ruled so far," he said.

In his decision, Feldman said the regulation of marriage is left to the states and the democratic process. Same-sex marriage is not a fundamental right and state bans do not violate equal protection and due process clauses in the Constitution, he said.

The judge also said Louisiana has a "legitimate interest whether obsolete in the opinion of some, or not, in the opinion of others in linking children to an intact family formed by their two biological parents."

The plaintiffs in the Louisiana case intend to appeal to the 5th Circuit Court of Appeals in New Orleans.

"The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts appear to have assumed the mantle of a legislative body," he wrote.

Feldman cited Judge Paul J. Kelly's dissenting opinion in the 10th Circuit Court of Appeals decision that Utah cannot deny residents the benefit or protection of marriage based on gender.

Kelly wrote that judges should resist the temptation to become "philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment."

"If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head," he wrote.

Feldman sided with the Louisiana, which argued that the Supreme Court recognized in the DOMA case the rights of state voters and legislatures to define marriage.

Rosky said more than one higher court has disagreed with Feldman, and that the judge didn't appear to rigorously engage his colleagues' arguments. He relied on dissenting opinions, including the one in the Windsor case. He said Feldman failed to take into account the Supreme Court found that DOMA harmed and humiliated the children of same-sex couples.

"There's a lot of discussion of what Windsor said about federalism, but as far as I can tell there was no discussion worth reading about why DOMA was unconstitutional," Rosky said.

Duncan said Feldman's opinion offers a well-reasoned, articulate alternative for the Supreme Court to consider.

"I'm hopeful this will be persuasive," he said. "At the very least, I think it's important for the Supreme Court to have a case where it's not going to be controlled by kind of a groupthink, but that there's careful, thoughtful analysis on both sides."